Court File and Parties

COURT FILE NO.: CR-18-0009-MO DATE: 2019-03-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN E. Hellinga, for the Crown (Respondent)

- and -

CHRISTOPHER PIZZIOL E. Dann, for the Accused (Applicant) Accused (Applicant)

K. Seeley, for the Complainant B.D. M. Angeconeb, for Tikinagan Child and Family Services

HEARD: February 21, 2019, at Kenora, Ontario Mr. Justice W. D. Newton

Warning

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons On Application

Overview

1The applicant, Mr. Pizziol, is charged with sexual interference and sexual assault.

2It is alleged that approximately 10 years ago, Mr. Pizziol, then a teacher, inappropriately touched the complainant, B.D., who was a grade two student.

3Mr. Pizziol seeks production of records from Tikinagan Child and Family Services (“Tikinagan”) and the Ontario Provincial Police (TP10011099) (“OPP”) relating to B.D., arguing that production of these records is in the interests of the administration of justice and Mr. Pizziol’s right to fair trial.

4The hearing before me proceeded in-camera, and I heard submissions from counsel for the accused; the Crown; the complainant, B.D.; and Tikinagan.

Position of the Parties

The Applicant

5Counsel for the applicant states that the police investigation into these allegations included review of another OPP investigation and review of Tikinagan records.

The OPP File

6In 2010, when the complainant was in grade three, the complainant and other students were engaged in sexual contact at school. The OPP investigated and interviewed the children. The investigating officers concluded that there were no instances of sexual assault during this incident. Police reviewed this investigation file as part of the investigation into the charges against Mr. Pizziol. The applicant argues that we can infer that the OPP asked the complainant and others whether they were ever sexually assaulted at any time.

7The synopsis of the current investigation includes this excerpt relating to the 2010 incident:

Summary of the results of the investigation concluded that all four involved parties were children at Sacred Heart School. All physical contact with student on student in similar grade with no outside influences. B.D. stated she learned about sex at school. The incident was closed and considered noncriminal as nothing was disclosed to the Ontario Provincial Police about a teacher touching the student.

8The investigating officer’s case notes from 2010 included the notation “no disclosure of S/A.” S/A is acknowledged as referring to sexual assault.

The Tikinagan Records

9In May 2015 and February 2016, the complainant reported to Tikinagan workers that she had been “molested” by the applicant when she was in grade 2. The investigating officer who reviewed the Tikinagan records reported that the complainant “said she did tell her mother … about it and she reported this to the school and the teacher lost his job…”

10The applicant submits that this is contradictory to the complainant’s testimony at the preliminary inquiry. She testified that she did not know why the applicant was not at the school the next year: “No idea. But I thought I was hearing a rumor about him being fired … [b]ecause he was looking down girls’ shirts.”

11The applicant also submits that this is contradictory to the complainant’s audio statement given to the police in 2016. In this statement, the complainant said that her foster parents knew that she was “scared” of the applicant, that they told the principal, and that other students started speaking out about him. The complainant explained that “he got fired, I guess” and “[t]hen everybody started … saying that I got him fired.”

The Crown and Tikinagan

12The Crown and Tikinagan take “no position” with respect to the application, but both emphasized the care that I must take to respect the privacy interests of the complainant and others.

The Complainant

13Counsel for the complainant emphasized the privacy considerations that arise particularly in the context of counselling records.

The Law

14It is not disputed that the applicant seeks records as defined by s. 278.1 of the Criminal Code, R.S.C., 1985, c. C-46.

15All agree that the production of these records is governed by the Mills regime, which establishes a two-part test: R. v. Mills, [1999] 3 S.C.R. 668. At the first stage, the trial judge will order production if satisfied that the record is likely relevant to an issue at trial or to the competence of a witness to testify and that the disclosure to the court is necessary in the interests of justice. At the second stage, the trial judge may only order that the records be produced to the accused if the records are likely relevant and the disclosure is in the interests of justice.

16Section 278.3(4) provides that certain assertions alone are insufficient to establish that a record is likely relevant. However, as noted in Mills, at para. 120:

The purpose and wording of s. 278.3 does not prevent an accused from relying on the assertions set out in s. 278.3(4) where there is an evidentiary or informational foundation to suggest that they may be related to likely relevance. The section requires only that the accused be able to point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify. [Emphasis added.]

17The purpose of the section is to prevent reliance on a bare assertion where there is no other evidence and the bare assertion stands on its own: see R. v. L.M., 2014 ONCA 640, 122 O.R. (3d) 257, at para. 36.

18In R. v. Batte (2000), 49 O.R. (3d) 321 (CA), at para. 72, Doherty J.A., for the court, stated:

I would hold that where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant’s credibility, those records will pass the likely relevance threshold only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value. [Emphasis added.]

19And, as stated at para. 75:

The mere assertion that a record is relevant to credibility is not enough. An accused must point to some “case specific evidence or information” to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value. [Emphasis added.]

20Section 278.5(2) sets out the factors to be considered in ordering production:

Factors to be considered

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account:

(a) the extent to which the record is necessary for the accused to make a full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on a discriminatory belief or bias; (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) society’s interest in encouraging the reporting of sexual offences; (g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process.

Disposition

21I am satisfied, on the balance of probabilities, that the Tikinagan records are likely relevant given the apparent inconsistencies between the statements contained within those records and the preliminary inquiry testimony.

22However, I do not reach the same conclusion with respect to the 2010 OPP investigation. Although close in time to the allegations giving rise to these charges, I am not satisfied that these records contain information that is not already available to the defence. There is no report of sexual assault by an adult or teacher. It is speculative for me to infer that there is other information that may be likely relevant.

23In so concluding, I have considered the factors set out in s. 278.7(2) which are “the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant and other persons.” I have also considered the factors specified in s. 278.5(2). I have concluded that the records that I order produced have probative value and are necessary for the accused to make a full answer and defence. I specifically considered the issue of potential prejudice to personal dignity, the right to privacy, and society’s interest in encouraging the reporting of sexual offences and the treatment of victims of sexual offences.

Review of Tikinagan Records

24I reviewed and numbered 44 pages of records from Tikinagan. The original pages as numbered have been resealed in an envelope.

25I am instructed by s. 278.7 of the Criminal Code, which provides as follows:

Judge may order production of record to accused

278.7 (1) Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3).

Factors to be considered

(2) In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2) (a) to (h) into account.

Conditions on production

(3) If the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record relates, including, for example, the following conditions:

(a) that the record be edited as directed by the judge; (b) that a copy of the record, rather than the original, be produced; (c) that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court; (d) that the record be viewed only at the offices of the court; (e) that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and (f) that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record.

26I have determined that only the following excerpts shall be produced:

1. Page 4
2. Part of pages 7 and 8
3. Part of Page 14
4. Part of page 17 – clinical case note – author Karla Elizondo
5. Part of page 35 – 30 Day assessment – author’s name illegible

27Section 278.7(3) provides that I may impose conditions on the production of records to protect the interests of justice and, to the greatest extent possible, the privacy and equality interests of the complainant and any other person to whom the records relate. Therefore, I have directed that certain entries be redacted to effect those purposes. I impose the following further conditions:

a. A copy of the records as redacted, rather than the original, shall be produced to counsel for the applicant and the Crown. b. Counsel and the accused shall not disclose the contents of the records to any other person except with approval of the court. c. No copies of the records shall be made except for trial use by counsel or with approval of the court.

28The records as redacted and produced to counsel shall be sealed in the court file.

29The unredacted records shall also be kept in a sealed package by the court pursuant to the provisions of s. 278.7(6).